R v Webster[2013] QCA 286

COURT OF APPEAL

MARGARET McMURDO P

MULLINS J

HENRY J

CA No 163 of 2013

DC No 175 of 2013

DC No 208 of 2013

DC No 209 of 2013

THE QUEEN

v

WEBSTER, Brock JamesApplicant

BRISBANE 

TUESDAY, 1 OCTOBER 2013

JUDGMENT

THE PRESIDENT:  Justice Mullins will deliver her reasons first.

MULLINS J:  On 29 May 2013 the applicant pleaded guilty in the District Court to one count of armed robbery in company, one count of armed robbery and one charge of breach of bail condition.  For each of the armed robberies he was sentenced to three years’ imprisonment with the date for his release on parole fixed at 29 November 2013.  A pre-sentence custody declaration was made in respect of 242 days spent in pre-sentence custody between 18 July 2012 and 24 February 2013 and between 10 and 29 May 2013.  The applicant was also convicted of the breach of bail condition but not further punished.

The applicant, who appears for himself, applies for leave to appeal against sentence, primarily on the basis that the sentence was manifestly excessive, as the parole release date was fixed after 14 months’ imprisonment rather than 12 months’ imprisonment.

Soon after the applicant’s 18th birthday, he entered a Subway restaurant in the evening of 11 June 2012 and threatened a 17 year old female staff member with a knife whilst he was wearing a “hoodie” and balaclava, and obtained $224.  His co-offender’s involvement was going into the restaurant and checking it out first, before the applicant entered.  The staff member was scared to continue working as a result of the robbery and resigned a couple of weeks later.

The applicant had 222 days on remand before he was released on bail.  It was an aggravating circumstance that whilst on bail he committed the second armed robbery.  An ex officio indictment was presented for the second armed robbery charge when the applicant was due to be sentenced for the first armed robbery.

The second armed robbery was committed on 4 May 2013 in the evening, when the applicant entered a video rental store where the 17 year old female staff member was working by herself.  He looked around, left the store, but returned 10 minutes later when there were no other customers in the store.  He was wearing a “hoodie” and a black balaclava.  He held a knife that was 20 to 25 centimetres long and about three centimetres wide, and told the complainant to “hand over the cash”.  He became aggressive and came around behind the counter.  He took about $500.  The applicant was observed by members of the public to run from behind the store and meet another male, and they rode away on bicycles.

Police attended the applicant’s nearby residential address and noted that he was not present in breach of the curfew condition of his bail.  Police located the other male, who made admissions.  A latent fingerprint on the counter of the store was identified as that of the applicant.  The applicant was subsequently located in New South Wales on 9 May 2013 and arrested, and extradited to Queensland on 10 May 2013 when he was remanded in custody.

The applicant had only one prior entry in his Queensland criminal history.  He was dealt with in the Magistrates Court for two charges of assault or obstruct police officer committed on 21 June 2011 for which no conviction was recorded and he was fined $500.  He had a juvenile history in New South Wales for offences committed on 20 November 2011 of common assault and stalking.

The applicant’s counsel at the sentencing conveyed the applicant’s instructions that he started smoking cannabis sativa from the age of 12 or 13 years and soon after was smoking “ice” and heroin and at the time he committed the offences he was a user of heroin.

The applicant’s counsel at the sentencing urged the learned sentencing judge to structure the sentence so that the applicant would benefit from a fixed release date.

The sentencing judge noted that a troubling feature of the applicant’s case was that he committed the second armed robbery after 222 days of “actual incarceration”, which suggested that “your rehabilitation is going to be difficult indeed.”  The sentencing judge noted that the applicant was almost 19 years old when he committed the second armed robbery.  Although the sentencing judge took into account the timely pleas of guilty, he noted there was no expression of remorse on the applicant’s behalf.  He also noted that the second armed robbery offence was before the court on an ex officio indictment and was a very early plea of guilty.  The sentencing judge noted that both general deterrence and personal deterrence were important factors in the sentencing.

The sentencing judge expressly acknowledged that he was acceding to the submissions made on the applicant’s behalf to ensure a fixed release date, due to the applicant’s youthfulness.  The sentencing judge then observed:

“But for doing that, the effective head sentence in your case would be four years imprisonment.  However, you will serve actual incarceration somewhat commensurate with that notional sentence.”

That was the sentencing judge’s explanation for reducing the head sentence for each of the armed robbery offences to three years’ imprisonment, but requiring the applicant to serve 14 months’ imprisonment before being released on parole. 

The sentencing judge had been referred to R v Gordon [2011] QCA 326, which was also relied on by the respondent on this application.  In that case, a 17 year old male had committed two successive armed robberies.  He had no prior criminal history, but showed remorse and good prospects for rehabilitation.  He was re-sentenced on appeal to a head sentence of four years with a parole eligibility date set after 10 months’ imprisonment.

In considering whether the sentence imposed on the applicant was manifestly excessive, it is not a matter of scrutinising separately the component parts of the sentence, but considering the overall effect of the sentence.  There is no basis for any complaint by the applicant where the notional head sentence of four years that was open to the sentencing judge was used for calculating the non-parole period of 14 months, but the head sentence that was imposed was three years imprisonment.  The sentence that was imposed for each of the armed robberies was consistent with a sound exercise of the sentencing discretion in all the circumstances.

The application for leave to appeal against sentence should be refused.

THE PRESIDENT:  I agree.

HENRY J:  I also agree.

THE PRESIDENT:  So your application for leave to appeal against sentence is refused.  You should now concentrate on making sure you have a good life organised for yourself when you’re released on parole at the end of next month, now.  And that you don’t get back on the drugs and alcohol when you’re released from prison.  We wish you well.